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Constitutional Amendments
Richard M. Skinner
2/23/2007
The Amending Process
• Constitutional amendments must be
passed by a 2/3 vote in the House and
Senate.
• They must then be ratified by ¾ of the
states, either by vote of the state
legislatures, or by specially assembled
state conventions.
• Alternatively, 2/3 of the states can call for
a new constitutional convention.
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The Bill of Rights
• In order to get the Constitution ratified,
Federalists had agree to a Bill of Rights.
• Alexander Hamilton had argued that there was
no need for a Bill of Rights, since the
Constitution created a government with limited
powers.
• James Madison, serving in the House, wrote the
Bill of Rights in 1789. Congress approved 12
amendments; 10 were ratified.
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The First Amendment
• Guarantees the freedom of religion ….
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The First Amendment
• The Establishment Clause: “Congress shall
make no law respecting an establishment of
religion…”
• Before the Revolution, most colonies had an
established church supported by tax money,
although dissenters were tolerated.
• The Church of England (established in New York
and the Southern States) saw its prestige hurt by
the Revolution, since many clergy had remained
loyal to the King.
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The First Amendment
• During the Revolution, Virginia temporarily
disestablished the Church of England; this was made
permanent after the war.
• In 1786, Jefferson and Madison won the passage of the
Virginia Statute of Religious Freedom:
• “That no man shall be compelled to frequent or support
any religious worship, place, or ministry whatsoever, nor
shall be enforced, restrained, molested, or burthened in
his body or goods, nor shall otherwise suffer on account
of his religious opinions or belief; but that all men shall
be free to profess, and by argument to maintain, their
opinion in matters of religion, and that the same shall in
no wise diminish enlarge, or affect their civil capacities.”
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The First Amendment
• The Establishment Clause forbids the United
States from adopting a state religion.
• It did not initially apply to the states: four states
maintained established churches into the early
19th century.
• The Establishment Clause has given rise to
numerous cases concerning whether the
government can recognize the role of religion in
American life (e.g., school prayer) and whether it
can assist religious institutions (e.g., aid to
parochial schools).
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The First Amendment
• The Free Exercise Clause: “… or
prohibiting the free exercise thereof.”
• The Free Exercise Clause has given rise
to many cases concerning whether laws
can infringe on religious practices, e.g.
denying unemployment benefits to people
who refuse to work on their Sabbath.
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The First Amendment
• Guarantees the freedom of expression…
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The First Amendment
• “Congress shall make no law … abridging
the freedom of speech or of the press.”
• The Supreme Court has been skeptical of
most restrictions on free speech.
• But there have been numerous
controversies involving libel, obscenity,
“fighting words,” and campaign finance
regulation, among other areas.
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The First Amendment
• “Congress shall make no law … abridging
… the right of the people peaceably to
assemble.”
• The Supreme Court has upheld this right
even for unpopular groups who might
provoke unrest.
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The First Amendment
• “…and to petition the Government for a
redress of grievances”
• This drew upon a long history in the AngloAmerican world of citizens – even those
who couldn’t vote – signing petitions
urging action from the authorities.
• This protects the right to lobby
government.
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The Second & Third Amendments
• The Second Amendment: “A well-regulated Militia, being
necessary to the security of a free state, the right of the
people to keep and bear Arms, shall not be infringed.”
• Not clear whether this protects an individual right to bear
arms, or just prohibits the disarming of state militias.
• But in District of Columbia v. Heller (2007), the Supreme
Court declared that the amendment does protect an individual
right, although many forms of gun control are permitted.
• The Third Amendment: no quartering of soldiers in private
homes in times of peace.
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The 4th – 8th Amendments: Rights
of the Accused
• The Fourth Amendment
• No “unreasonable searches and seizures.”
• No searches without a warrant issued by a
judge.
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The 4th – 8th Amendments: Rights
of the Accused
•
•
•
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The Fifth Amendment.
Indictments only by grand jury.
No double jeopardy.
No self-incrimination. Source of “Miranda
warning.”
• A citizen may not be deprived of their “life,
liberty, or property without due process of law.”
• Private property may not be taken for public use
“without just compensation.”
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The 4th – 8th Amendments: Rights
of the Accused
• The Sixth Amendment.
• Accused must enjoy a right to a “speedy and
public trial…”
• a trial by jury (also protected in Article III) …
• the right to confront the witnesses against them
and to call witnesses in their defense…
• the right to the assistance of defense counsel.
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The 4th – 8th Amendments: Rights
of the Accused
• The Seventh Amendment
• Protects the right to trial by jury in civil
suits under federal law.
• The Eighth Amendment
• No “excessive bail” or “cruel and unusual
punishments.”
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The 9th & 10th Amendments
• The 9th Amendment: The Bill of Rights does not
“deny or disparage others retained by the
people.”
• Used in 1965 to declare a right to marital
privacy.
• The 10th Amendment: Powers not delegated to
the federal government, or forbidden to the
states, are reserved to the states or the people.
• Cornerstone of “dual federalism.”
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The 12th Amendment (1804)
• Reformed the unworkable Electoral College
system created in the Constitution.
• In 1796, John Adams elected president, his
opponent Thomas Jefferson elected VP.
• In 1800, running mates Jefferson and Aaron
Burr tied for president; House elected Jefferson.
• 12th Amendment created separate votes for
president & vice president.
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The Civil War Amendments
• Three amendments passed during and
after the Civil War fundamentally changed
the relationship between the federal
government and the states.
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The Civil War Amendments
• The 13th Amendment (1865) bans slavery.
• Before the Civil War, few Americans
believed that the federal government could
interfere with slavery within the states.
• The Emancipation Proclamation (1863)
applied only to the states in rebellion, and
was justified as a wartime measure.
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The Civil War Amendments
• The 14th Amendment (1868):
• Defines “all persons born or naturalized in
the United States” as citizens, overturning
the Dred Scott decision (1857) that
declared that blacks were not citizens.
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The Civil War Amendments
• The “Due Process” Clause: “Nor shall any State deprive
any person of life, liberty, or property, without due
process of law.”
• In the 20th century, this became the source for the
doctrine of “incorporation,” i.e. that “due process”
incorporates most of the guarantees of the Bill of Rights
and applies them to the states.
• Justice Hugo Black was the principal proponent of this
view.
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The Civil War Amendments
• The Equal Protection Clause: “nor deny to any
person within its jurisdiction the equal protection
of the laws.”
• This clause has been used to overturn many
state regulations deemed discriminatory, most
famously, racially segregated schools in Brown
v. Board of Education (1954).
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The Civil War Amendments
• The 15th Amendment (1870): The federal and state
governments may not deny the right to vote to citizens
“on account of race, color, or previous condition of
servitude.”
• Constitution had previously left suffrage qualifications to
the states.
• Not effectively enforced until the Voting Rights Act of
1965. White Southerners had found many means –
legal and extralegal – to subvert the 15th Amendment.
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Progressive Era Amendments
• These amendments were aimed at
reducing the power of big business and
at “cleaning up” politics.
• 16th Amendment (1913): federal
government may impose an income
tax.
• 17th Amendment (1913): direct election
of senators.
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Progressive Era Amendments
• 18th Amendment (1919): Prohibition – repealed
by 21st Amendment (1933).
• 19th Amendment (1920): women’s suffrage.
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